IT IS commonly known that an employer who provides a reference owes an employee a duty to exercise reasonable care to ensure that it is factually accurate.

If an ex-employer gives a false negative reference to a potential employer, the ex employer could then be sued by the former employee for making a “negligent misstatement”, if as a result, the employee suffers economic loss, ie does not get a job.

Following the recent case of Mckie v Swindon College, High Court (QBD), we now know that such liability goes beyond references.

In this case, Mr Mckie was appointed to a teaching post in 1995. He subsequently left that job with an excellent reference in 2002 to take up a job elsewhere. In May 2008 he was offered and accepted a post at the University of Bath where part of his new job was to liaise with and visit Swindon College.

Shortly after starting, a director from Swindon College sent an email to the university stating among other things that they would not allow Mr Mckie on their premises due to having safeguarding concerns for its students.

Following this email, Mr Mckie was dismissed by the university and he in turn brought a claim against Swindon College for negligent misstatement and breach of contract.

The judge in this case did not view the email as a reference and believed that it constituted the passing on of information from one party to another and went beyond just a normal standard reference. The contents of the email in the end were found to be false and based on gossip, The outcome: the judge found Swindon College liable for careless and fallacious comments.

This case serves as another cautionary tale for all employers in their dealings with ex-employees and establishes that an employer’s duty of care to ex-employees is not confined to the providing of references but can extend to comments made in passing or when passing information on to another employer.

As an employer, you need to think very carefully and above all check your facts before making any comments that could lead to an ex-employee being dismissed from their current job.

The number of years gone by will also not make a difference. In the above case, despite the passing of some six years since the employment relationship between Mr Mckie and Swindon College came to end, there was still a duty there.

Of course, an employer who dismisses an employee on the back of information that they have received from the old employer could also have an unfair dismissal claim made against them if they do not investigate the information properly or allow the employee to explain.

But in most cases, the one year’s service for an employee to bring a claim for unfair dismissal won’t be there. Therefore the employee’s only option will be to bring a claim against their ex-employer.